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Lord Warner: My Lords, I must respond to the amendments as they have been tabled on the Marshalled List. However, I do not deny that sometimes there are difficult issues of judgment to be made in relation to the regulatory arrangements about which the noble Baroness, Lady Barker, has expressed her concerns. I have expressed some sympathy for the thinking behind the amendments discussed at earlier stages. However, the amendments before the House do not solve the problem, and I should like to take noble Lords through the arguments.

The amendments would have the effect of giving CHAI the function of regulating under Part 2 of the Care Standards Act 2000 institutions carrying out "excepted treatments". I recall that it was unclear in Committee what the excepted treatments were to be and I am afraid that it remains unclear now. We have debated at length the difficulty in setting boundaries for regulation between health and social care. These amendments would take us no further forward in that debate, but would, if passed, fundamentally undermine the regulation of social care services to the detriment of service users. I shall come back to the letter which has been sent to noble Lords by the shadow chairs of the two inspection bodies.

The intended effect of the amendments is to make CHAI the regulator in the case of all services providing support to people with long-term conditions. I do not doubt the sincerity of noble Lords, but I believe that it would be fundamentally wrong and detrimental to the welfare of many thousands of people using these services to take such a step. To agree to the amendments would be, in effect, to wreck Part 2 of the Bill because they would drive a coach and horses through the system of registration set out in Part 2 of the Care Standards Act 2000.

This system of registration is based on the premise that establishments of a particular type must register as such before they may lawfully operate. Any relevant establishment which does not register will be operating unlawfully and its managers liable to prosecution. Accepting the amendments would mean that the identity of the commission with which the establishment in question was required to register could change on a regular basis, leading to complete confusion and making the registration system established by the Care Standards Act 2000 effectively inoperable.

I shall explain why this is so. Amendment No. 22 would defined "excepted treatment" as the,


This is fraught with difficulties, as we discussed in some detail in Committee. The effect of the amendment is that a care home which has residents with long-term conditions would be regulated by CHAI rather than CSCI. That would be contrary to

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what all sides have previously accepted as "social care". The Bill does not define a "long-term condition" and so our advice is that it would most likely be interpreted by the courts to mean any medical condition, however manageable, which cannot be cured in the short to medium term, but can be managed with medication.

Let me give one or two examples to illustrate the concerns. There might be in a care home a resident over 65 who has mild diabetes—or, indeed, Parkinson's, as my mother has. These conditions are easily treated by self-medication, with or without the assistance of care home staff, but they are long-term conditions. Treatment for these kinds of conditions may require only intermittent intervention from a GP or other health professional but, on the other hand, because of their general age and infirmity, such persons might need constant personal care. Which is the prime need? In this instance, I would suggest it was personal care rather than healthcare and that CSCI should inspect.

Another example is that of people in care homes who are receiving services for alcohol or drug abuse. They may need some healthcare input but in the majority of cases counselling and support about their life circumstances and lifestyles will be equally important. Such counselling, as well as other support with personal care needs, is as fundamental to the successful treatment of substance abuse as any health support. This kind of counselling has always been considered as part of the social care provision of such services and I find it hard to see how these amendments would ensure the proper regulation of such provision. I could give many more examples but the two that I have given will suffice to support the point that I am trying to make.

I do not believe that it was the intention of noble Lords to bring the regulation of such services within the responsibility of CHAI, given that we are establishing CSCI and taking over responsibilities in social care. But that is the effect of the amendments. They call into question the legal basis of regulation currently applied under the Care Standards Act in a large array of cases. This would have truly perverse consequences and cause great confusion in the services.

There are more than 10,000 care homes in England providing homes to many tens of thousands of older people and adults. As I have explained, the amendment could also have implications for other types of registered services such as children's homes or domiciliary care agencies. I find it hard to believe that, in spite of the potential harm this would cause, especially to older people, noble Lords would want to throw the system of registration established by the Care Standards Act into such array.

The chairs of CSCI and CHAI have written to noble Lords to express their concerns about the amendments. It was their decision to do so. They were not put up to it by the Government. They have made those representations because of their concerns about

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the disarray that might be caused in this area. I hope that noble Lords will heed their concerns, even if they will not heed me.

As I stated in Committee, the Bill provides in Clauses 120 to 123 for co-operation and joint working between CSCI and CHAI. The intention is that the commissions should be able to plan to work together, to review the quality of any joint services provided by or for the NHS and local authorities and to share expertise where services regulated by either commission have substantial health or social care aspects. This allows, for example, CSCI to seek the assistance of CHAI when inspecting care homes or other social care services providing nursing or associated health services so that professional issues can be appropriately covered.

I ask the House to reconsider the issue very carefully. This is a potentially extremely damaging amendment, as the shadow chairs of both CHAI and CSCI have expressed to your Lordships.

Baroness Barker: My Lords, I thank all noble Lords who have contributed to the debate. On behalf of all noble Lords, I should like to place on record our thanks to the shadow chairs of the two bodies for their letters and for their appreciation of the reasoning and concerns behind the amendments. It is heartening to know that there will be a commitment to co-operation from the chairs of those bodies.

I remain in great sympathy with the noble Earl, Lord Howe. The role that chance plays in the places in which people find themselves and the kinds of services they receive is immense. The blurring between nursing care and residential care is getting greater and greater all the time. There will have to be a step change in the degree of co-operation between CSCI and CHAI if we are ever to have the kind of system we need where the amount of inspection and regulation from each body can vary but is appropriate to the needs of patients. I continue to retain a great fear that people who are receiving what is primarily social care are being subjected to inappropriate medical procedures.

I have listened with great care to what the Minister said about the effect of the amendment on the implementation of the Care Standards Act and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 21 and 22 not moved.]

Baroness Barker moved Amendment No. 23:


    Before Clause 113, insert the following new clause—


"COMPLAINTS
(1) Complaints under this Act may be made by an individual or a body of persons, whether incorporated or not, as specified in section 3.
(2) A complaint may be submitted in respect of—
(a) the exercise by an NHS body of any of its functions;
(b) the provision by any person of health care for which the body is responsible;
(c) the provision of an NHS service by a health professional supplied under private contract; and

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(d) the provision of services by the body or any other person in pursuance of arrangements made by the body under section 31 of the Health Act 1999 (c. 8) (arrangements between NHS bodies and local authorities) in relation to the exercise of the health-related functions of a local authority.
(3) A complaint may be initiated by—
(a) the aggrieved patient, or
(b) on behalf of the patient by—
(i) his personal representative;
(ii) a member of his family;
(iii) an independent advocate; or
(iv) some body or individual suitable to represent him.
(4) Where the patient lacks capacity, a complaint may be initiated independently by any person able to exercise an enduring power of attorney for the patient under the Enduring Powers of Attorney Act 1985 (c. 29) or successor legislation, or the patient's carer under the Carers (Recognition and Services) Act 1995 (c. 12) or the Carers and Disabled Children Act 2000 (c. 16) (or both), or their Guardian under the Mental Health Act 1983 (c. 20) or successor legislation."

The noble Baroness said: My Lords, I return, I hope for the last time, to the subject of complaints—a subject which is close to my heart. On Report, the noble Baroness, Lady Andrews, made a characteristically thorough demolition of the amendments that I had brought forward on this subject. She will be delighted to know that I listened to every word she said and that I have come back with a carefully crafted amendment that addresses every point she put forward.

Why do I bother at this late stage of the debate? Because complaint procedures are an important part of patient protection and patient involvement in the healthcare system. While the noble Baroness, convincingly and at length, spoke about the benefits of having complaint procedures in regulations so that they can be changed, there is nothing on the face of the Bill which provides an enabling power to establish a complaints procedure. We believe that to be a major deficiency. The existing NHS complaints procedure is fraught with inefficiencies and does not work. When we move to the new system, as we will, it is important that we do so on the basis of a procedure that does work.

We have tried to address many deficiencies in the amendment. We referred to the role of CHAI. The Minister expressed concerns at an earlier stage that our amendment widened the field of complaint beyond individual patients, and so we have changed it to specify in subsections (3) and (4) who can make a complaint.

We spoke about how CHAI should take over responsibility for second stage health complaints and we have attempted to put right a number of the problems in the existing procedures. We want to ensure the independence of complaints procedures; we want to provide a mechanism for ensuring that feed-back is given to people who make complaints; and we want to drive up standards.

We have spoken about the need to integrate complaints procedures with ICAS and the Commission for Patient and Public Involvement in Health proposals,

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which, I am delighted to report, are now known on the ground as "Chippy" proposals. We have spoken about fast-track procedures for the ombudsman stage of complaints where CHAI deems that to be appropriate and, crucially, we have spoken about harmonisation between health and social services complaints procedures.

One has only to talk to users out there for not a very long time to find that there are people who are battered back and forth between the two different parts of the complaints procedure and never get a satisfactory answer. It is the potential for being battered between different bodies—between CHAI and local complaints procedures—that may be a possible cause of huge dissatisfaction with the complaints procedure.

We talked again about the need for oral hearings. When people have complaints or, more than that, are simultaneously dealing with matters such as bereavement, the right to have an oral hearing can be extremely important to everyone concerned. So far, we believe that the Minister's promises about regulations have addressed some of our complaints. However, without that power in the Bill, we believe that there is a deficiency.

Finally, the legislation so far includes only complaints about NHS bodies; it does not refer to complaints procedures as they might apply to private contractors when services are contracted out.

For all those reasons, I hope that the Minister accepts that I have gone away and done my homework and presented her with a perfect amendment. I beg to move.

5.30 p.m.

Baroness Andrews: My Lords, I share the sense of deja vu that the noble Baroness clearly demonstrated. I was obviously far too helpful on Report. Her amendment is a good one but, I am afraid, not good enough. I want to explain why that is so, and to reiterate how much we share her concern that the process should be as robust, sensitive and effective as she said that it should be—and I could not improve on the way in which she said that. The complaints procedure needs to do exactly what it intends to do.

Clause 113(1) is intended to set out in general terms what a complaint under regulations may be about. Clause 115 expands on the types of provision that can be made in regulations. Amendment No. 23 would place a detailed provision in the Bill, stipulating precisely who might make a complaint under the regulations, while stating in slightly more detailed terms what a complaint may be about. I was hoping that I had been able to reassure noble Lords in Committee and on Report that the concerns they are raising through this amendment would be dealt with, and better dealt with, through regulations. This is not a question of the Government being perverse or obstructive; we are convinced of this case, and I shall say again why I believe that.

The amendment has attempted to address one of the deficiencies that I highlighted. The previous version did not address the question of capacity. However, the

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added wording on capacity highlights the fundamental problem with the amendment, because it adds too much detail. Subsection (4) of the amendment is over-prescriptive, and is not helpful about the persons who may make a complaint on behalf of a person who lacks capacity. Precisely because it would not be possible to modify provisions should circumstances change, the danger is that by having that in the Bill, we would make the system less rather than more accessible to such a person.

The regulation-making power in Clause 115 already allows the Secretary of State to make appropriate provision for persons making a complaint. Subsection (2) of the amendment adds nothing of substance to the existing provision in Clause 113(1). Subsection (1)(b) already covers all healthcare by or for an NHS body, including services commissioned from the independent sector. Therefore, I believe that the noble Baroness's point is covered.

With regard to the specific content of subsections (3) and (4) of the amendment, I assure the noble Baroness, as I did in Committee and on Report, that it is our intention that regulations will make provision to enable the types of person listed in those subsections to assist a complainant in bringing a complaint or, where appropriate, to bring a complaint on their behalf. We intend to consult fully on those regulations to ensure that they are as full and complete as possible. I must repeat again what I said in Committee and on Report—that subsection (3) of the amendment is not detailed enough. It makes little reference to the patient himself or herself, to his or her consent to having the complaint made, or the involvement that he or she might have in the process, despite the fact that the noble Baroness is a great champion of the consent process. We can do all that in regulations; that is the genius of the regulatory system.

Meanwhile, the relationship between subsections (3) and (4) of the amendment is not clear. It is unclear whether a member of a patient's family may initiate a complaint on behalf of a patient without capacity, as such a person, although specified in subsection (3), is not specified in subsection (4). That would create more problems than it solved. Subsection (4) sets out a precise list of which persons may make a complaint on behalf of someone who lacks capacity but does not allow scope for the list to be expanded or contracted, or for the person handling the complaint to exercise discretion over which persons should be allowed to act as representatives. That is why a broad regulation-making power such as is contained in Clause 115 will allow the Secretary of State scope to deal with the very complex issues of patient consent and incapacity in an appropriate way. It also means that the class of persons who may bring a complaint is appropriate and flexible, and not too narrow or too wide.

I reiterate that consultation is very important and that we have to get the process right. I conclude with a positive restatement of that. It is our role to ensure that the complaints procedures that we adopt truly reflect the needs of patients, service users and others who have an interest in the consideration of complaints. The Bill provides us with an opportunity, and we want to make the best possible use of that opportunity. To

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do that, we must consult widely on the content of the regulations so that we can be in a position to respond to comments received. It would be nonsense not to be able to do so. We must make changes when people come up with sound reasons for doing so. It would be a betrayal of what we were trying to do if we were not in a position to do that. Having the detail in the Bill suggested by the amendment would restrict our ability to respond to the results of the consultation. Indeed, we would have to amend primary legislation if specific changes were required. It would also disable us from dealing with future changes.

I do not really need to add the following, but I shall. At this stage in the parliamentary process, we could not be sure that any detailed provision we produced would be sufficient to cover all possible eventualities—for much the same reasons as I have had difficulties with the noble Baroness's amendment. I agree that the Government have the huge benefit of parliamentary counsel on their side, and the noble Baroness has shown enormous resilience and resourcefulness in returning again with the amendment. I wish that I could accept it, but I hope that she is finally persuaded by my arguments that the provisions are better done by regulation.


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